Stop Letting White House Lawyers Make 'Get Out of Jail Free' Cards

By Conor Friedersdorf

If the Obama Administration's definition of "combatant" is absurd on its face, Americans don't have to accept it.

Reuters

Recall the statement that Attorney General Eric Holder sent to Rand Paul the morning after his filibuster? "Does the President have the authority to use a weaponized drone to kill
an American not engaged in combat on American soil?" Holder wrote. "The answer to that
question is no."

Seems straightforward, right?

Everyone agrees that an American citizen who is shooting up a federal building, flying a plane toward a skyscraper, or driving a truck bomb toward a street fair can be shot on sight by authorities. And anyone who worried about the targeted killing of a suspected terrorist sitting at a cafe eating or walking his dog in the park seemingly got an answer: He can't be targeted and killed.

Or can he?

Some say further clarification is needed. After Bill Clinton's lawyerly denials, George W. Bush's refusal to call torture by its name, and Barack Obama's absurd definition of imminence, I can't blame Ryan Goodman for asking, "What, exactly, does the Obama administration mean by 'engaged in
combat'? The extraordinary secrecy of this White House makes the answer
difficult to know."

We can't trust the plain meaning of the words, he continues:

If you put together the pieces of publicly available information, it
seems that the Obama administration, like the Bush administration before
it, has acted with an overly broad definition of what it means to be
engaged in combat. Back in 2004, the Pentagon released a list
of the types of people it was holding at Guantánamo Bay as "enemy
combatants" -- a list that included people who were "involved in
terrorist financing." One could argue that that definition applied solely to prolonged
detention, not to targeting for a drone strike. But who's to say if the
administration believes in such a distinction?...Sweeping financiers into the group of people who can be killed in armed
conflict stretches the laws of war beyond recognition. But this is not
the only stretch the Obama administration seems to have made. The
administration still hasn't disavowed its stance, disclosed last May in a
New York Times article,
that military-age males killed in a strike zone are counted as
combatants absent explicit posthumous evidence proving otherwise.

Persuasive.

The Obama Administration has twisted the definition of "combatant" beyond recognition before. So maybe the wrongly accused terrorist sitting at a cafe in Boise, Idaho, isn't as safe as Paul thinks?

I've got three reactions to this story.

1) Americans ought to keep pushing for information about the rules that surround targeted killing until we know everything. Paul's filibuster was an important first step, not a culmination or victory.

2) The Obama Administration and its predecessors have so twisted the English language that they've undermined democratic debate itself by making everyone mistrust the very words being used.

What a discrediting legacy they're leaving.

3) As important as it is to be mistrustful of every claim that the Obama Administration makes, and to keep pushing them for more information, it is also necessary, at some point, to insist on holding our leaders accountable to their words as we're meant to understand them based on their plain meaning, rather than granting legitimacy to dubious definitions spelled out in secret Office of Legal Counsel memos. If the executive branch can hide behind tendentious legal interpretations to justify anything, no matter how seemingly illegal, we'll have ceased to be a nation of laws.

For that reason, let this be known: Especially now that the Attorney General publicly avowed that the president does not possess the power "to use a weaponized drone to kill
an American not engaged in combat," the appropriate response, if an American is killed in a drone strike while unarmed at a cafe, is to impeach the president, indict him for murder, and prepare a prison cell. Never mind if a secret OLC memo defines "in combat" as "military-aged males in proximity to a drone strike" or "anyone so declared by a secret tribunal composed of Barack Obama, John Brennan, and Dick Cheney." OLC memos of that kind have only one legitimate purpose: It would be good to frame them to hang in the prison cell as a reminder of crimes committed. Few imagine, right now, that imprisoning a president would be possible, even if he blatantly transgressed in the most serious way possible -- unlawful killing -- but we ought to be reasserting the proposition that, if unlawful killing occurs, a long prison term is the just, legitimate, expected outcome.